First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Friday, April 4, 2014

The McCutcheon hangover. Take two aspirin, America. It's not so bad.

Relax.  It's going to be OK.

Two days ago, in McCutcheon v. FEC, the US Supreme Court struck down limits on what individuals can give, in the aggregate every two years, to candidates for federal office, political parties and political action committees (PACs).  That means an individual is still limited in how much he or she can give to particular candidates, parties and PACs, but is not limited in how much he or she can give overall in each two-year cycle.

Does McCutcheon mean the sky is falling?  No. 

Look, the decision is not surprising.  After Buckley v. Valeo (where the Court held that money equals speech), First National Bank of Boston v. Belloti (holding that corporations have political speech rights) and Citizens United v. FEC (striking down limits on spending money for electioneering independent of campaigns) there was no real doubt that a majority of this Court would make sure that individual donors can contribute to as many federal candidates as their bank accounts will allow.

The chorus in America is hoarse from screaming disdain for the decision.  I think the hand-wringing over this particular case is overdone.

I respond to some of the most common reactions to McCutcheon below:

Reaction #1:  The McCutcheon decision means there will be even more money in politics!

Response:  Maybe.

First note:  more money was spent on the 2008 presidential race (pre-Citizens United) than the 2012 presidential race (post-Citizens United); although more was spent on congressional races in 2012 than in 2008.  Which brings us to whether the McCutcheon decision will bring more money into politics.

There are fewer than 700 people in the entire country who bumped up against the aggregate limits (what McCutcheon addresses) in the last election cycle.  Is it likely that all 700 of those individuals will max out now that the aggregate limits are gone?  Is it likely that thousands more people will exceed what would have been the aggregate limits pre-McCutcheon?  I doubt it because those same people already could have donated even more to SuperPACs.

Remember that after Citizens United was decided in 2010, SuperPACs were created, which allow unlimited donations and unlimited spending independent of candidates' campaigns.  A lot of money poured into SuperPACs.  In fact, there was approximately $1 billion in spending by independent groups in the 2012 election cycle, but it could have been even more because SuperPACs can take an unlimited amount of money.  Of that $1 billion, 63% came from the top 1% of donors (the top 1%, by the way, is a lot more than 700 people).  It seems just as likely that high-rollers will simply shift their massive donations from SuperPACs to candidates and parties, than that there will be a marked influx of money -- i.e., "more money" -- overall in the long run.   

Reaction #2:  More money in politics is terrible!

Response:   This has evolved into a truism we hear all the time without much articulated support.  I start from the position that discussion of political issues is the highest, most prized form of speech. 

Whether I am right or wrong about the total amount of money that will flow into politics after McCutcheon, I am not convinced that more money in politics is an inherently bad thing.  The money we're talking about will be taken out of the accounts of wealthy people and given to media companies of various types for advertising (good for a struggling industry and borderline national economy (read jobs)) in order to discuss political issues.  Discussing and engaging on political issues is not the worst way to spend our money.

In the first election cycle after Citizens United, Americans spent around $6 billion on politics, which is less than we spend every year on potato chips.  We spend more than twice as much on pornography.  And, we spend over $100 billion per year on beer.  Is a lot -- albeit a whole lot -- of campaigning an inherently worse way to shuffle around funds in society? 

Reaction #3: More money in politics means only the rich will have a voice!

Response:  So, you admit that money equals speech ...?

Just because the rich can spend more on politics (and they have always been able to do that, by the way) doesn't mean they will get the political results that they want.

Reaction #4:  More money in politics means bigger donors will get whatever they want!  

Response:  Please give voters a little more credit.

The non-partisan, non-profit Center for Responsive Politics found that, in the 2012 election cycle (i.e., post-Citizens United), the candidate with the outside money advantage lost in seven out of the ten congressional races that garnered the most outside spending. 

In California's last gubernatorial election, Republican Meg Whitman spent $177 million and Democrat Jerry Brown spent $36 million.   Brown won.

In 1992 and 1996, billionaire Ross Perot spent tens of millions of his own money running for president.  Perot's portrait is not hanging in the White House.

Reaction # 5:  More money in politics means Republicans will sweep into power!

Response:  See my response to Reaction #4.

According to the New York Times, in the 2012 presidential race, Obama's camp raised more money than Romney's camp, but Obama spent less than Romney.  SuperPACs attacking Obama wildly outspent those attacking Romney.  Among SuperPAC donors (no limit, remember), 49% of those supporting Obama gave $1 million or more, compared with 42% of those supporting Romney.  Obama won.       

Perhaps the best response to Reaction #5 came from Matt Canter, deputy executive director of the Democratic Senatorial Campaign Committee, who said that the McCutcheon decision would "significantly boost our efforts to keep control of the Senate."

Oh yeah, that reminds me ... the Democrats also kept control of the Senate after Citizens United.
Reaction #6:  More money in politics means more corruption!

Response:  Not to sound too Clintonesque, but it depends what you mean by "corruption."

First, there can only be corruption if the candidate you supported wins.  (See my response to Reactions #4 and #5.)  If a donor hedges his or her bets and supports more than one candidate in the same race, then won't voters just hear more voices?  Isn't that a good thing in political debate?

There is concern among many that McCutcheon limits the idea of corruption to quid pro quo (Latin for "something for something") dealing, and discounts the purportedly corrupting effects of influence and access.  But, if corruption gets defined too broadly then any efforts by any constituent who gave any money to get a politician to act could be considered corrupt.  I like the idea of our representatives listening to us.  I know that means that big donors may get more time, but they don't get more votes than we do.  Again, see my response to Reactions #4 and #5.

Reaction #7:  More money in politics is not what the Founders would have wanted!

Response:  Really?

Hey, I have a great admiration for a great many things that the Founders imparted to us, but their concept of who should have influence in politics is not one of them.  In the Founders' era, only white males who owned land could vote and hold office.  A battle against McCutcheon is not the right time or place to invoke the Founders.

Reaction #8:  This decision will lead to more bad rulings on campaign finance issues!

Response:  Again, apologies to Clinton, but it depends what you mean by "bad".

Maybe McCutcheon will open the door to even more money in politics in later decisions.  That is very possible.  The Court could one day strike down the ban on "soft money" contributions to political parties and the individual limits on donations to particular candidates.  The concurring opinion by Justice Thomas in McCutcheon was ready to do away with all of those limitations.   But, I find it significant that no one else on the Court joined Thomas' opinion.

Also, the Chief Justice's controlling opinion in McCutcheon reemphasized the importance of disclosure requirements -- i.e., encouraging transparency of the very donations at issue.  I like the idea advanced by the Sunlight Foundation that there ought to be real-time transparency for hard money contributions in politics.  That would mean we could instantly see, on the Internet, who is giving what to whom.  Such immediate transparency would further our democratic principles, further address many of the reactions noted above and be consistent with the First Amendment.


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